We granted leave to determine the appropriate standard of judicial
review of a prosecutor’s charging decision. The trial court applied
the "abuse of discretion" standard. We disagree and
reverse and remand for further proceedings consistent with this
opinion.

Defendant, a police officer, knowingly made false statements
in an affidavit submitted in support of a request for a search
warrant. After the warrant was authorized and executed, defendant
went to the officer in charge and admitted that he had made false
statements in the affidavit in reliance on information he received
from another officer. He also agreed to cooperate with his police
department in its investigation of the incident.

Following a preliminary examination, the prosecutor sought to
have defendant bound over on the felony offense of perjury other
than during a court proceeding, MCL 750.423; MSA 28.665. Defendant
objected, arguing that the more appropriate charge was the misdemeanor
offense of unlawfully procuring a search warrant, MCL 780.658;
MSA 28.1259(8). The district court initially decided in defendant’s
favor on this question, reasoning that the prosecutor was legally
required to charge defendant with the more specific search warrant
offense rather than the more general perjury offense. On appeal
to the circuit court, this decision was reversed. However, the
circuit court remanded the question to the district court for
a hearing to determine whether the prosecutor’s decision to charge
defendant with the felony offense was an "abuse of discretion."
After a hearing at which defendant made an offer of proof on
that question, the district court ordered an evidentiary hearing.
The circuit court denied leave to appeal that order; we granted
leave to appeal.

Defendant argues that an "abuse of discretion" standard
is appropriate for judicial review of charging decisions made
by a prosecutor. The record is clear that there was sufficient
evidence to support charges under either the felony or misdemeanor
statutes at issue here. The record shows that the "abuse
of discretion" standard that the lower courts would apply
would question whether the prosecutor had a "rational basis"
sufficient to support charging defendant under the felony rather
than the misdemeanor statute.

We have held in the past that the prosecutor is the chief law
enforcement officer of the county and has the right to exercise
broad discretion in determining under which of two applicable
statutes a prosecution will be instituted….

"Acting as prosecutor, judge and jury" is a common
description of an unfair and unlawful operation. However innocently
and mistakenly, this is what happened in this case. The trial
judge assumed the right over the objection of the prosecutor to
determine under which of the two applicable statutes a prosecution
will be instituted. As already indicated such determination is
an executive function and a part of the duties of the prosecutor.
For the judiciary to claim power to control the institution and
conduct of prosecutions would be an intrusion on the power of
the executive branch of government and a violation of the constitutional
separation of powers. Const 1963, art 3, § 2. It also violates
our fundamental sense of fair play.

Applying these principles more recently, this Court reasoned:

[T]he trial court’s authority over the discharge of the prosecutor’s
duties is limited to those activities or decisions by the prosecutor
that are unconstitutional, illegal, or ultra vires….Put differently,
a trial court does not have authority to review the prosecuting
attorney’s decisions outside this narrow scope of judicial function.
[People v Morrow, 214 Mich App 158, 161; 542 NW2d 324
(1995).]

Accord People v Siebert, 450 Mich 500, 510; 537 NW2d 891
(1995).

Under these precedents, it would be a violation of the separation
of powers for a court to second-guess whether a prosecutor has
a "rational basis" or "good reason" for bringing
charges under one applicable statute rather than another applicable
statute. Discretion is afforded the prosecutor by the fact that
evidence is available to support a charge under either statute.
That discretion is abused only if a choice is made for reasons
that are "unconstitutional, illegal, or ultra vires."Morrow, supra. Courts thus review a charging decision
under an "abuse of power" standard, questioning whether
a prosecutor has acted in contravention of the Constitution or
the law. Id.

There is no evidence that the prosecutor has run afoul of this
limitation in the present case. The circuit court previously
overturned a district court ruling that the prosecutor’s charging
decision was contrary to applicable case law; that reversal has
not been appealed. There is no suggestion that the prosecution
acted outside of its authority in bringing the felony charge against
defendant. There is no evidence or implication that defendant
was subjected to a felony charge because of his race or for any
other unconstitutional reason.

Rather than suggesting that the prosecutor acted unconstitutionally,
illegally, or ultra vires, defendant’s argument is basically that
the prosecutor acted unfairly and that, considering the circumstances,
a misdemeanor charge would have been more appropriate. Defendant
argues, for example, that the prosecutor should have charged him
with the lesser offense because defendant voluntarily came forward
with his admission and has cooperated in investigating the incident.
Certainly the prosecutor could have considered this and charged
defendant with a misdemeanor, but the prosecutor instead chose
to charge defendant with a felony rather than a misdemeanor.
The court cannot second-guess that exercise of discretion constitutionally
provided to the prosecutor.

In the absence of any evidence of an abuse of power, the prosecutor
must be allowed to proceed with the felony charge against defendant.
We remand to the circuit court for further proceedings pursuant
to that charge. We do not retain jurisdiction.